Supreme Court Allows Google Books to Scan Book Contents as ‘Fair Use’

Google’s large-scale efforts to scan and digitize millions of books and make them searchable, without getting the publishers’ or authors’ permission, can continue based on a court ruling. The U.S. Supreme Court on Monday declined to hear an appeal from authors who maintain that Google Books is violating their copyrights and let stand a lower court ruling that allows the company to continue scanning books contents under the auspices on “fair use”for its comprehensive searchable database.

The Supreme Court’s refusal to hear a challenge ended a legal saga that began more than a decade ago. In 2004, Google began building a massive online library by scanning and digitizing as estimated 20 million books from major research libraries’ collections, particularly many nonfiction works that are out of print. The Authors Guild and a group of writers sued Google in 2005 over their scanning books for their digital library and serving parts of them up search results.

The authors maintained that the Google Books project amounted to copyright infringement on a mass scale. They claimed the practice is wanton infringement of their protections and expands the fair-use doctrine. However, the high court, and the 2nd U.S. Circuit Court of Appeals before that, disagreed.

“Fair Use” is a highly contentious aspect of U.S. copyright law and is often decided on a case-by-case basis. Under fair use, people can quote a copyrighted work (such as a passage from a book or section of lyrics in a review). Google Books’ database lets users search a line or phrase from a book and find the specific reference or section.

The law, however, does not specify how many words, what percentage of a work, or specific details about what constitutes unfair use, beyond the amount of the work used and affecting the marketability. The latter means offering so much content from a work that no one would then pay for it (as opposed to giving a bad review suggesting no one buy it).

Last June, the Appeals Court rules that Google’s project was lawful and even beneficial to society. The three-judge panel unanimously decided that it is essentially legal to scan books even without permission or owning the copyright.

The authors’ group then appealed to the U.S. Supreme Court via a petition for a writ of certiorari. In their responding brief, Google maintained that people are better off because of its project. “Google Books gives readers a dramatically new way to find books of interest,” the brief said. “By formulating their own text queries and reviewing search results, users can identify, determine the relevance of and locate books they might otherwise never have found.”

Approval of the writ would have required at least three Supreme Court justices to agree that the case involved a significant federal question with the result in the public interest. By denying the writ, the high court indicated that they believe the lower court decision conforms to accepted law and previously decided cases. In other words, the Supreme Court allowed Google Books to continue its efforts to scan books and present their contents in search, much like news articles, as accepted examples of fair use.